Citation Nr: 1312869
Decision Date: 04/18/13 Archive Date: 05/02/13
DOCKET NO. 07-27 063 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for a disorder manifested by memory loss, to include as due to an undiagnosed illness and/or exposure to ionizing radiation.
2. Entitlement to service connection for a disorder manifested by a decrease in energy, to include as due to an undiagnosed illness and/or exposure to ionizing radiation.
3. Entitlement to service connection for a disorder manifested by weight gain, to include as due to an undiagnosed illness.
4. Entitlement to service connection for a dermatological disorder, to include as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant, H.H.
ATTORNEY FOR THE BOARD
M. Scott Walker, Counsel
INTRODUCTION
The Veteran served on active duty from January 1989 to September 1992.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran was afforded a Board hearing, held by the undersigned, in November 2012. A copy of the hearing transcript has been associated with the record.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Although the Board regrets any further delay in adjudicating the Veteran's claims, pursuant to the duty to assist, the issues of entitlement to service connection for memory loss, loss of energy, weight gain, and a skin rash must be remanded for further development.
With regard to the Veteran's claim that exposure to environmental hazards during his Gulf War service may have caused his claimed disorders, pertinent laws and regulations include special provisions for a Persian Gulf veteran who exhibits objective indications of an undiagnosed illness or certain medically unexplained chronic multisymptom illnesses. See 38 U.S.C.A. § 1117, 1118 (West 2002); 38 C.F.R. §§ 3.317 (2012). A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d). The Veteran in this case meets this criterion.
Here, the Board notes that the evidence of record does contain several diagnoses for
myalgia, for which the Veteran is currently service connected. However, during his Board hearing, he testified that his claim for "low energy" is wholly separate from his service-connected muscle weakness. See Transcript, p. 12. A VA examination, conducted in October 2003, indicated that the Veteran's fatigue was related to depression, leading the RO to conclude in January 2004 that each claimed disorder did, in fact, carry a diagnosis. However, it does not appear that each of the Veteran's claims were addressed at that time. Further, the Veteran has not been afforded a VA examination to specifically address his contention that these specific disorders, or manifestations thereof, are related to Gulf War illness. While a Gulf War examination was conducted in September 1994, symptoms addressed at that time included headaches, nausea, dizziness, trouble sleeping, diarrhea, and dyspepsia. While the Veteran's report of "low energy" was also noted, the examiner failed to provide a detailed medical opinion, or rationale, to show that the Veteran's lack of energy was due to a diagnosed disorder, rather than undiagnosed illness.
The Veteran's service treatment records contain one notation of "weakness" on February 10, 1989. A history of bumps on his neck after shaving was reported on June 9, 1989. Dizziness, of unknown etiology, was noted in November 1989. Service treatment records also document a lack of energy on July 31, 1991. "Functional numbness" was diagnosed on February 26, 2002. On November 25, 1991, the Veteran reported depression, though he denied loss of memory. On separation in July 1992, his skin was normal, and there was no psychiatric defect, loss of energy, or weight fluctuation noted.
VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon at 83. The threshold for finding a link between current disability and service is low. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83.
In summary, taking into account the Veteran's Gulf War service, the fact that several of the Veteran's reported symptoms were noted during his period of active service, and the Veteran's competent testimony which indicated that he suffers from these symptoms at present, these claims for service connection should be remanded for an additional VA Gulf War examination so as to determine whether any claimed disorder is etiologically-related to the Veteran's period of active service, to include as due to an undiagnosed illness.
Moreover, during the Veteran's Board hearing, he indicated that his claims for memory loss and lack of energy may be due to radiation exposure. Specifically, he testified that he handled M181A tank rounds, which contained depleted uranium, during his initial stint in Operation Desert Storm. See Transcript, p. 15. When a "radiogenic disease" listed in 38 C.F.R. § 3.311(b)(2) first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1) (2012). Specifically, VA must request certain radiation dose information and then refer the claim to the Under Secretary for Benefits for further consideration.
38 C.F.R. § 3.311(a)(2) and (b)(1) (2012). "38 C.F.R. § 3.311(b) does not provide presumptive service connection for 'radiogenic diseases.' Rather, it outlines a procedure to be followed in adjudicating a claim for service connection for such diseases." Ramey v. Brown, 9 Vet. App. 40, 45 (1996), affirmed sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997).
Neither low energy, nor memory loss, is on the list of the radiogenic diseases identified in 38 C.F.R. § 3.311(b)(2). VA should nonetheless attempt to confirm whether the Veteran was exposed to ionizing radiation during his period of active service, and, if so, to obtain any unit or other records involving radiation exposure during the time in which the Veteran was serving in that unit. On remand, VA should ask the service department and any other appropriate government agency/records custodian about the Veteran's possible exposure to ionizing radiation and, if a response cannot be given, to indicate the reason(s) why. To this end, the RO, following attempts to locate the Veteran's unit records, should request that Defense Threat Reduction Agency (DTRA) or other appropriate agency provide a dose estimate. See 38 C.F.R. § 3.311(b).
The RO should then determine whether the prerequisites for referral to the Under Secretary for Benefits under 38 C.F.R. § 3.311(b) have been met. Once a dose estimate is obtained, it is noted that any exposure higher than zero triggers a referral to the Under Secretary. Wandel v. West, 11 Vet. App. 200, 205 (1998).
Accordingly, the case is REMANDED for the following actions:
1. The RO/AMC shall schedule a VA Persian Gulf examination to determine the nature and etiology of his reported memory loss, lack of energy, rash, and weight fluctuation. The examination should include any diagnostic testing or evaluation deemed necessary. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished.
Based on a physical examination and comprehensive review of the claims file, please examine and evaluate this Veteran with Southwest Asia service for any chronic disability pattern. Please provide a medical statement explaining whether the Veteran's disability pattern for each claimed disorder is: (1) an undiagnosed illness, (2) a diagnosable but medically-unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis.
If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern for each separate joint is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion, with supporting rational, as to whether it is at least as likely as not that the disability pattern or diagnosed disease for joint pain to the hands, elbows, hips, and knees is related to a specific exposure event experienced by the Veteran during service in Southwest Asia.
Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.
2. An attempt should be made to obtain the Veteran's unit records. Specifically, VA must contact any applicable government depository and request information to determine whether, and to what extent, the Veteran was exposed to ionizing radiation while serving in Operation Desert Storm and, if so, to obtain any unit records involving radiation exposure during the time the Veteran's unit was so exposed, if applicable.
3. Following the completion of the records request, to the extent available, the RO should request a radiation dose estimate from the DTRA. The information contained in the letter to DTRA should include the regulation under which the request is made (38 C.F.R. § 3.311); the appellant's name, address, and phone number; the Veteran's branch of service and service number; the Veteran's social security number; the Veteran's organization or unit of assignment at the time of exposure; dates of assignment at the radiation-risk activity; a full description of the duties at the radiation risk activity; and, a description of the disease claimed. See Veterans Benefits Administration Fast Letter 04-20.
4. After a dose estimate has been obtained, and if that estimate is greater than zero, the case should be referred to the Under Secretary for Benefits to obtain an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that any currently-diagnosed disorder as likely as not resulted from exposure to ionizing radiation during active service.
5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the action taken in the paragraphs above, the claim should be readjudicated.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).